Summary: Mrs X complained about the Council’s decision in January 2022 to refuse her request for direct payments to commission services for her son, F’s short break hours. The Council accepted it did not apply relevant law and guidance correctly, despite a previous finding of fault by us about the same matter. It has now approved the direct payments and backdated them as appropriate. The Council agreed to pay Mrs X £600 in recognition of the significant frustration and time and trouble caused to her.

The complaint

1. Mrs X complains about the Council’s consideration of her request for direct payments for her son, F between October and July 2022. Mrs X says the Council failed to consider her request in line with relevant law which meant it wrongly refused her request during this period.
2. Mrs X says the Council has now agreed to provide her with direct payments and has backdated the payments. She says however it has failed to adequately remedy the distress and time and trouble caused to her and that it is still publishing the incorrect criteria on its website.

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What I have and have not investigated

3. I have investigated events from December 2021 onwards. I have not investigated events prior to this because we have already considered and investigated this period and provided a remedy. I have referred to this period in this statement for context.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

7. I spoke to Mrs X about her complaint and considered information she provided.
8. I considered information from the Council including its investigation into Mrs X’s complaint and its response to my enquiry letter.
9. Mrs X and the Council had the opportunity to comment on the draft decision. I considered their comments before I made a final decision.

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What I found

Law and relevant guidance on personal budgets and direct payments

10. The 2015 SEN and Disability Code of Practice, which is statutory guidance, states that councils are under a duty to offer direct payments for services which the council may provide to children with disabilities under the Children Act 1989.
11. Under the Children Act 1989, section 17(A) says where a disabled child has needs which are assessed as eligible for support, they are entitled to either a service or a direct payment that is sufficient to meet their needs.
12. The Children and Families Act 2014 also says a council that maintains an Education, Health and Care (EHC) plan must prepare a personal budget for the child concerned if asked to do so by the child’s parent. A personal budget is an amount of money identified by the local authority to deliver provision where the parent or young person is involved in securing that provision. It can include funding from education, health and social care.
13. Section 17(11) of the Children Act states that a child is disabled if he suffers from “mental disorder of any kind”.

The Council’s policy

14. The Council’s policy relevant to this complaint was that it would only provide direct payments to children who satisfy eligibility criteria and have been assessed as having a “qualifying social care need over and above what universal and targeted services can provide”.
15. The Council had a graduated approach to services as follows:

• Level 1 (universal help)
• Level 2/3 (early help)
• Level 4 – statutory intervention is required either there is a child in need or a child in need of protection as defined in the Children Act 1989 or a child has complex care needs and disabilities which require specialist services.

16. The Council’s policy was only children at Level 4 are eligible for direct payments;
17. The Council’s website outlined how a child qualified for an assessment. It said the child must:
• Be under 18 years old
• Be a resident in its area
• Have a permanent and substantial impairment, resulting in a functional disability, which affects their daily living including a severe learning need.
18. The website further stated ‘a child will not be eligible if they are diagnosed with Attention Deficit Hyperactivity Disorder, HIV or a psychiatric illness unless they have other disabilities which meet the eligibility criteria.

Statutory children’s complaints procedure

19. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail.
20. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
21. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. Councils have up to 13 weeks to complete stage two of the process from the date of request.
22. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.

What happened

Background

23. Mrs X has a son, F who has special educational needs (SEN) and an EHC plan. F has a diagnosis of autism and other conditions which are outlined in his EHC plan. F’s EHC plan outlines his entitlement to ‘short break’ sessions for social and leisure activities. In 2020 F’s EHC plan stated Service C would provide these sessions.
24. Mrs X complained to us in 2021 that Service C was unsuitable. Mrs X had stopped sending F to Service C because he found it distressing and was unwilling to attend. Mrs X said the Council had failed to offer an alternative service. We found no fault with this element of the complaint as although F struggled with the transition from home to Service C, he settled well once inside. We found therefore there was no evidence Service C was unsuitable.
25. Mrs X also complained that the Council had fail to properly consider her request for direct payments so she could commission and pay for an alternative provider herself. She said the Council’s policy and eligibility criteria was wrong as while it accepted F was disabled, he was not sufficiently disabled to warrant an assessment by the children’s disability team. This meant F was not eligible for direct payments.
26. We found the Council at fault because in line with the Children Act 1989, F is disabled and therefore entitled to direct payments. We found the Council’s decision to refuse Mrs X’s direct payments request was not in line with statutory requirements and its policy did not properly take into account the 1989 Act.
27. We issued our final decision in December 2021. The Council agreed to reconsider its position on direct payments to disabled children and review its eligibility criteria. It agreed to reconsider Mrs X’s request and it paid her a total of £500 to recognise the delay in deciding whether to pay her direct payments and for the time and trouble caused.

Events leading to this complaint

28. Following our final decision and recommendations in December 2021 a social worker carried out an assessment with F at home in late December 2021. Following the visit Mrs X complained about how the social worker carried out the assessment and that they arrived unannounced. Mrs X was upset the social worker made the assessment feel like a child protection assessment by speaking with F alone in his room, rather than a request for early help and direct payments. The Council responded to Mrs X’s complaint and apologised for the social workers unannounced visit and for any upset caused by how they carried out the assessment which it accepted was unnecessary in this instance.
29. The Council completed F’s assessment at the end of January 2022 and maintained its decision not to offer Mrs X direct payments because Service C was able to meet F’s needs and it was Mrs X’s choice for not taking this up.
30. Mrs X complained about the outcome of the assessment in mid-February 2022 and requested a stage 2 investigation. She said the Council had not provided a proper explanation of why it was refusing direct payments and referred it back to our previous investigation findings. Mrs X suggested the Council had failed to apply the correct law and guidance despite our previous findings.
31. The Council did not complete its stage 2 investigation until June 2022. The investigation found the Council gave Mrs X inappropriate reasons as to why it refused direct payments. It found the Council was unable to refuse direct payments on the grounds it was offering an alternative service or based on a level of disability. The investigation referred to our previous decision which found the decision to refuse the direct payments was not in line with the Council’s own policy or statutory requirements. The stage 2 investigation found the Council was reviewing its eligibility criteria but had not completed this. The stage 2 investigation recommended a senior officer review Mrs X’s request with input from legal services.
32. Mrs X remained unhappy and asked the Council to consider the matter at stage 3. Mrs X reiterated that Service C was not appropriate. Mrs X gave an example of staff at Service C blocking F from leaving the building and restraining him. Mrs X asked for a risk assessment for these incidents and any restraint policy in place. She also pointed out some errors in F’s assessment and remained unhappy with the Council’s policy and eligibility criteria.
33. The Council wrote to Mrs X following the stage 2 investigation and apologised for the faults found. The Council said it was evident F was a disabled child, had an EHC plan and met the statutory requirements for direct payments. The Council accepted that Service C could no longer meet F’s needs. The Council confirmed it was now approving direct payments for F. It also confirmed it was already carrying out a review of its direct payment policy following another (unrelated) Ombudsman investigation. The Council also agreed to backdate the payments to October 2020 when Mrs X first requested direct payments.
34. A stage 3 panel considered Mrs X’s complaint in August 2022. The panel noted the Council had agreed F’s direct payments and backdated them and was satisfied the Council was working towards a new direct payment policy. The panel recommended a payment of £250 for Mrs X to acknowledge the impact and time and trouble the matter caused her.
35. Following the stage 3 panel Mrs X wrote to the Council. She was disappointed with the level of detail the panel went into. She wanted her complaint about the eligibility criteria documented and felt the Council ignored our previous findings. Mrs X was unhappy it took 18 months for the Council to accept Service C was unsuitable and felt insulted by the offer of £250.
36. The Council’s final response to Mrs X noted her concerns about the eligibility criteria and said its policy was under review. The Council said the offer of £250 was not a negligence payment but rather a symbolic payment. With regards to Mrs X’s request for Service C’s restraint policy and risk assessments it confirmed it was dealing with this however noted it was not part of her initial complaint.
37. Records show that following the conclusion of the complaints process the Council backdated the direct payments. Mrs X wrote to the Council stating the rate was not enough to cover the cost of paying a personal assistant and the cost of activities. The Council confirmed to Mrs X that the direct payment is paid on an hourly rate to cover the cost of the personal assistant but does not cover travel costs, admission costs to activities or food and drink.
38. Mrs X remained unhappy and complained to us. Mrs X was unhappy with the remedy offered by the Council and said despite the findings it was still publishing the flawed eligibility criteria on its website. Mrs X also complained the Council had failed to provide her with Service C’s risk assessments and restraint policy as it agreed to do at the conclusion of the complaints process.
39. In response to my enquiry letter the Council apologised for not removing the incorrect eligibility criteria from its website. It has now done so. It confirmed since the stage 2 investigation it has been progressing requests for direct payments in line with the relevant law on a case by case basis. It confirmed since January 2022 it has received only two complaints around direct payment requests, both of which we have investigated. The Council said it is updating its eligibility criteria which is currently in draft format stage.
40. With regards to the use of the direct payment the Council confirmed the sum paid is based on an hourly rate for a personal assistant. However it said Mrs X has the flexibility to use direct payments as she thinks fit and if she chooses to pay for entrance fees for activities for F then she can do so.
41. The Council said it has written to Mrs X and apologised for the delay in providing the requested information about Service C. It has provided a link to Service C’s behaviour management policy.

My findings

42. As explained above our previous investigation made findings for the period of time prior to December 2021. This included concerns around the suitability of Service C and injustice caused by the Council’s decision to refuse direct payments prior to December 2021. Therefore, I have only considered the Council’s actions from December 2021 onwards and any injustice caused after this period.
43. The Council upheld Mrs X’s complaints under the statutory complaints procedure. Despite our previous findings the Council accepted it had again failed to apply the relevant law and guidance correctly in deciding to refuse Mrs X’s request for direct payments. This fault is disappointing given the findings of our previous investigation.
44. Following its investigation, the Council continued publishing the flawed eligibility criteria on its website. That was fault. The Council has apologised for the oversight and now amended the website. However, as it stands it does not have a published transparent eligibility criteria on its website. My enquiries found it has not caused any other person who has not already complained an injustice.
45. Mrs X has said the direct payment she is now in receipt of is not enough to provide F with the social and leisure activities in line with his EHC plan. F’s EHC plan does not specify a requirement for paid activities, rather it states the short breaks should be designed to meet F’s needs. They are also in place to give Mrs X respite. The Council has confirmed that Mrs X has the flexibility to use the direct payment sum as she sees fit. The direct payment sum is based on the hourly rate of a personal assistant so it would be for Mrs X to fund activities which require paid entrance for example, or entail travel costs over that sum. There is no evidence F’s short breaks cannot be met through free activities. If Mrs X is unhappy with the wording or specificity of the EHC plan she should explore this at the next annual review of the plan.
46. The Council agreed to provide Mrs X with information about Service C’s restraint policy and any risks assessments. It failed to do this in a timely manner which is fault. Any ongoing concerns Mrs X has about incidents which occurred at Service C or about Service C’s policies should be raised as a new complaint.
47. Finally, the Council investigated Mrs X’s complaint under the statutory children’s complaints procedure. It failed to complete stage 2 in line with statutory timescales by two weeks and delayed holding the stage 3 panel by 13 days. This was fault.

Injustice

48. As mentioned above it is disappointing Mrs X was put to the time and trouble of complaining to the Council again during 2022 despite our previous findings. The repeated fault meant Mrs X had to unnecessarily go through a protracted complaints process which delayed her receipt of direct payments for F. The Council has accepted fault, put the direct payments in place and backdated them to October 2020 which is appropriate. The Council has offered Mrs X £250 to remedy the time and trouble caused. I have however made a recommendation to increase that payment taking into consideration all of the faults found above and the frustration and time and trouble caused.
49. The Council is currently carrying out a major review of its direct payment policy following the conclusion of another Ombudsman investigation. This review will consider the findings of stage 2 investigation in relation to this matter. Therefore, it is not necessary to recommend service improvements in relation to this. I have however made a recommendation around the eligibility criteria which is separate from the direct payment policy review.

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Agreed action

50. Within one month of the final decision the Council agreed to:
• pay Mrs X £600 to acknowledge the frustration caused to her by the Council’s failure to consider her request for direct payments in line with relevant law and guidance and the time and trouble caused to her in complaining about the matter for the second time. It also accounts for the frustration caused by the delays in completing the complaints process.
• the Council agreed to provide us with a copy of its draft updated eligibility criteria. It will explain to us how it intends to apply its eligibility criteria for disabled children’s services and direct payments and make customers aware of the criteria in the interim before it publicises its revised policy.

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Final decision

51. I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman